Russo v. Mount Sinai Doctors Long Is.
Opinion
Russo v Mount Sinai Doctors Long Is.
2026 NY Slip Op 05044
August 19, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Rosemarie Russo, appellant,
v
Mount Sinai Doctors Long Island, et al., respondents.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 19, 2026
2024-12306, 2024-12373, (Index No. 602759/21)
Valerie Brathwaite Nelson, J.P.
Linda Christopher
Lourdes M. Ventura
Donna-Marie E. Golia, JJ.
Jon L. Norinsberg, Esq., PLLC (Horn Appellate Group, Brooklyn, NY [Christen Giannaros and Scott T. Horn], of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci, Stephanie F. Freeman, Julia Audibert, and Patrick Lawless of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated October 3, 2024, and (2) a judgment of the same court entered November 7, 2024. The order granted the defendants' motion for summary judgment dismissing the complaint. The judgment, upon the order, is in favor of the defendants and against the plaintiff dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
In June 2018, the defendant Elizabeth Small, a physician employed by the defendant Mount Sinai Doctors Long Island, performed cataract removal surgery on the plaintiff's left eye and placed an intraocular lens (hereinafter IOL) in the plaintiff's left eye (hereinafter the first surgery). In July 2018, after the plaintiff complained that her vision had deteriorated following the first surgery, Small performed a second surgery on the plaintiff's left eye in order to exchange the IOL implanted during the first surgery for an IOL with a lower diopter power (hereinafter the second surgery). When Small removed the IOL during the second surgery, she identified a tear in the plaintiff's posterior capsule. Following the second surgery, the plaintiff's visual acuity improved, but she began experiencing pain, pressure, and tearing in her left eye, and she was eventually diagnosed with Uveitis-Glaucoma-Hyphema (hereinafter UGH) syndrome in her left eye.
Thereafter, the plaintiff commenced this action to recover damages for medical malpractice against the defendants. The plaintiff alleged, among other things, that Small departed from accepted standards of medical practice in failing to calculate the correct diopter power for the IOL placed in the plaintiff's left eye during the first surgery and failing to properly exchange the IOL during the second surgery and that these departures were a proximate cause of her injuries. The defendants moved for summary judgment dismissing the complaint. In an order dated October 3, 2024, the Supreme Court granted the motion. On November 7, 2024, the court entered a judgment, upon the order, in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals.
"In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff" (Attia v Klebanov, 192 AD3d 650, 651). "In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars" (Kogan v Bizekis, 180 AD3d 659, 660 [internal quotation marks omitted]; see Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 171 AD3d 1234, 1235). "Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden" (Piazza v NYU Hosps. Ctr., 208 AD3d 525, 526; see Donnelly v Parikh, 150 AD3d 820, 822). "General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant provider's summary judgment motion" (Paxton v Sosnowski, 238 AD3d 779, 782 [internal quotation marks omitted]; see Weintroub v Maimonides Med. Ctr., 222 AD3d 915, 916).
Here, the defendants' submissions, including an expert affirmation, established, prima facie, that Small did not depart from good and accepted medical practice and that any alleged departures were not a proximate cause of the plaintiff's injuries. With respect to the first surgery, the defendants' expert opined, inter alia, that Small did not depart from good and accepted medical practice in her calculation and selection of the diopter power for the IOL and in her placement of the IOL. With respect to the second surgery, the defendants' expert opined, among other things, that Small did not depart from good and accepted medical practice in identifying and managing the plaintiff's posterior capsular tear and in selecting and placing the new IOL. Further, the defendants' expert opined that any alleged deviations were not a proximate cause of the plaintiff's alleged injuries and that a posterior capsular tear and UGH syndrome are known risks of cataract surgery and IOL exchange surgery that can, and did, occur in the absence of any negligence (see Friedman v Vitale, 224 AD3d 888, 890; Brinkley v Nassau Health Care Corp., 120 AD3d 1287, 1289).
In opposition, the plaintiff failed to raise a triable issue of fact. The opinions of the plaintiff's expert were conclusory, speculative, and based largely on hindsight reasoning (see Getselevich v Ornstein, 219 AD3d 1493, 1495; Samer v Desai, 179 AD3d 860, 863).
"To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Ciceron v Gulmatico, 220 AD3d 732, 735 [internal quotation marks omitted]; see Cox v Herzog, 192 AD3d 757, 758).
Contrary to the plaintiff's contention, she failed to adequately plead a cause of action alleging lack of informed consent. The complaint and the bill of particulars failed to allege that a reasonably prudent person in the plaintiff's position would not have undergone the first or second surgery if he or she had been fully informed (see Public Health Law § 2805-d[3]; Orphan v Piln
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